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Air India, Ltd. v. Brien

December 27, 2006


The opinion of the court was delivered by: Glasser, United States Senior District Judge



This action has been the subject of protracted litigation extending over a period of more than a decade and involving more than a dozen airlines. Familiarity with the underlying facts and issues is assumed. These issues have been litigated repeatedly before this Court not only in this action, but in three related ones as well,*fn1 and have found their way to the Court of Appeals for the Second Circuit and back. Despite the numerous efforts of this Court to decide the issues with finality, this action once again presents itself for adjudication. These efforts have obviously failed. Currently pending before the Court is Defendants' Fed. R. Civ. P. 60(b)(6) motion for relief from this Court's March 13, 2003*fn2 Order.


On March 23, 2000, a group of airlines (collectively, "Air India" or "Plaintiffs") filed this action seeking a declaratory judgment that the Immigration and Naturalization Services's ("INS") imposition of fines on them for transporting special immigrants who subsequently received waivers of the visa requirement was unlawful. Additionally, Plaintiffs sought a declaration that a 1998 amendment to the Regulations addressing visa requirements of aliens ("the Regulations"), promulgated pursuant to 8 U.S.C. § 1323, was void because it was contrary to Congressional intent and because it was promulgated without opportunity for notice and comment in violation of the Administrative Procedure Act, 5 U.S.C. § 553 ("APA"). In a Memorandum and Order ("M&O") dated February 14, 2002, this Court extensively reviewed the Regulations promulgated under 8 U.S.C. § 1323, specifically, 8 C.F.R. § 211,*fn3 including the various revisions and amendments to the Regulations. In that M&O, this Court determined that while the fines were properly imposed pursuant to the plain text of the Regulation, the 1966 version of the Regulation was void as it was promulgated in violation of the APA's notice and comment requirement. Since the 1966 version allowed for the imposition of fines where the 1957 version did not, the 1966 version imposed a liability that did not exist in the previous version and was thus subject to the notice and comment requirement. Since it did not comply with the APA, the Regulation was void and any fines imposed pursuant to the Regulation were arbitrary and capricious. This Court also determined that any challenges to the 1998 amendment were not ripe for review. See Air India, et. al., v. Brien, et. al., No. 00-1707, slip op. (E.D.N.Y. Feb. 14, 2002).

Subsequently, Defendants moved for reconsideration of the March 13 Order pursuant to Fed. R. Civ. P. 59(e). Defendants asserted a statute of limitations defense, contending that challenges to Regulations as being promulgated without notice and comment in violation of the APA are subject to a six year statute of limitations as set forth in 28 U.S.C. § 2401. In an M&O dated March 13, 2003, this Court determined that any procedural challenge to the 1966 Regulation was in fact time barred, but revisited the substantive challenge to the Regulation.*fn4 Noting that this Court had addressed several substantive challenges in its February 14 Order and rejected them, this Court nonetheless considered a previously unconsidered substantive challenge: namely, that the imposition of fines under the Regulation was improper in that it violated the stated intent of the Attorney General in promulgating the 1966 version of the Regulation. This Court noted that the notice and comment section of the 1966 version specifically stated that the Regulation was not subject to notice and comment because it "confer[red] benefits on persons affected thereby." 31 Fed. Reg. 13387 (Oct. 15, 1966). This Court found that such a clear expression of intent refuted the argument that the Regulation was intended to impose liability on airlines when none had existed under the 1957 version of the Regulation, despite the clear language of the 1966 Regulation that in fact did allow for the imposition of fines. This Court also found that the INS had not sought to impose the fines for the first twenty-two years after the 1966 Regulation, which suggested that the INS had not interpreted the Regulation as allowing for such fines, either. Therefore, this Court found that the INS's decision to impose fines twenty-two years after the 1966 version of the Regulation was promulgated was arbitrary, capricious and an abuse of discretion. See Air India v. Brien, 261 F.Supp.2d 134 (E.D.N.Y. 2003).

Considering the six-year statute of limitations to procedural challenges, this Court sua sponte addressed the Plaintiffs' procedural challenge to the 1998 amendment of the Regulation. The Court found that the 1998 amendment to the 1997 version of the Regulation was a legislative rule that was subject to the notice and comment requirement of the APA. Since there was no notice and comment period, it was void. See id.

On September 14, 2004, this Court issued an M&O in a related case, United Airlines, Inc. v. Jones, 337 F.Supp.2d 406 (E.D.N.Y. 2004) ("United Airlines"). In United Airlines, this Court held that the unambiguous Congressional intent of 8 U.S.C. § 1323 was to preserve fines against airlines which brought undocumented aliens to the United States regardless of the subsequent admission of the alien either via waiver of the required documents or parole. In a lengthy and detailed M&O, this Court analyzed prior decisions of the Board of Immigration Appeals ("BIA") that found certain versions of the Regulations as not allowing for the imposition of fines on airlines when the alien received a waiver of the documentary requirements. This Court found those BIA decisions to be contrary to Congressional intent and flawed. Relying heavily on the Supreme Court decision in Hamburg-American Line v. United States, 291 U.S. 420 (1934), this Court found that interpreting Regulations as not allowing for the imposition of fines was erroneous. The Court specifically found that a waiver of the required documents is "for the benefit of the alien and not for the benefit of the carrier as against which the fine is preserved against any discretionary admission." United Airlines, 337 F.Supp.2d at 418. Moreover, this Court found that since "[t]he manifest intention of Congress . . . was to subject carriers to a penalty for taking on board and bringing to the United States aliens not in possession of required documents," id. (citation omitted), any administrative interpretation of Regulations to the contrary must be, and therefore were, rejected. See id.

Based on the decision in United Airlines, Defendants moved this Court on December 1, 2004 pursuant to Fed. R. Civ. P. 60(b)(6) for relief from the March 13, 2003 Order.


I. Fed. R. Civ. P. 60(b)

A. Timeliness

In relevant part, Fed. R. Civ. P. 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; or (6) any other reason justifying relief from the operation of the judgment.*fn5

Rule 60(b) motions may be granted only where the movant makes a showing of exceptional circumstances requiring relief. See Spinelli v. Sec'y of Dept. of Interior, No. 99-8163, 2006 WL 2990482, at *2 (E.D.N.Y. Oct. 19, 2006) (Bianco, J.) ("'Since 60(b) allows extraordinary relief, it is invoked only upon a showing of exceptional circumstances.'") (quoting Cent. Vt. Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir. 2003)). The provisions of Rule 60(b) are mutually exclusive, such that "a court 'may treat a motion to vacate a prior judgment as having been made under 60(b)(6) only if the other, more specific grounds for relief encompassed by the rule are inapplicable.'" Spinelli, 2006 WL 2990482, at *3 (quoting Maduakolam v. Columbia Univ., 866 F.2d 53, 55 (2d Cir. 1989)); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988) ("Rule 60(b)(6) . . . grants federal courts broad authority to relieve a party from a final judgment 'upon such terms as are just,' provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5).") (citations omitted). While "[t]he Rule does not particularize the factors that justify relief," id. at 864, the Supreme Court has noted "that it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,'" id. (quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949) (plurality opinion of Black, J.)), "while also cautioning that it should only be applied in 'extraordinary circumstances.'" Id. (quoting Ackermann v. United States, 340 U.S. 193 (1950)).

Plaintiffs assert that this motion is untimely because it is properly a 60(b)(1) motion and therefore bound by a statutory one year limitation, or, alternatively, if it is properly a 60(b)(6) motion it is untimely because it was not brought within a "reasonable time" as required by the statute. Defendants assert that it is properly a 60(b)(6) motion and is timely because it was brought approximately ...

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